A BILL TO BE ENTITLED
AN ACT to amend the motor fuel marketing act.
The General Assembly of North Carolina enacts:
SECTION 1.  Article 3 of Chapter 75 of the General Statutes reads as rewritten:
"Article 3.
"Motor Fuel Marketing Act.
"§ 75‑80.  Title.
This Article shall be known and may be cited as the "Motor Fuel Marketing Act".
"§ 75‑81.  Definitions.
As used in this Article, unless the context  indicates otherwise, the following definitions apply:
(1)	'Person' means any person, firm, association, organization, partnership, business trust, joint stock company, company, corporation or legal entity.
(2)	'Sale' means selling, offering for sale or advertising for sale.
(3)	'Motor Fuel' means motor fuel, as defined in G.S. 105‑449.60, and alternative fuel, as defined in G.S. 105‑449.130.
(4)	'Cost' or 'Costs' 	  	 means the total of all of the following:
a.	The most recently published average reseller rack cost of motor fuel by grade and quality, as calculated by the Oil Price Information Service (OPIS) for the particular terminal from which the motor fuel was delivered to the motor fuel merchant or the low OPIS Rack Price as reported by OPIS for the particular terminal from which the motor fuel was delivered to the motor fuel merchant, whichever is less.
b.	The freight charges on the motor fuel.
c.	All applicable State and federal excise taxes.
	 
(6)	'Affiliate' means any person who (other than by means of a franchise) controls, is controlled by or is under common control with, any other person.
(7)	'Motor Fuel Merchant' means any person selling motor fuel to the public.
(8)	'Motor Fuel Outlet' means any retail facility selling motor fuel to the motoring public.
	 
(10)	'Refiner' means any person engaged in the production or refining of motor fuel, whether such production or refining occurs in this State or elsewhere, and includes any affiliate of such person or firm.
(11)	'Terminal Supplier' means any person engaged in selling or brokering motor fuel to wholesalers or retailers from a storage facility of more than 2,000,000 gallons capacity and such person has an ownership interest in or control of the storage facility.
"§ 75‑82.  Unlawful below‑cost selling; exceptions.
(a)	No motor fuel merchant or  affiliate of any motor fuel merchant shall sell  motor fuel for less than the cost unless either of the following applies:
(1)	The price is established in good faith to meet  the lower price of a competitor  selling the same or comparable product of like quality.
(2)	The sale is made pursuant to the order or authority of any court or governmental agency.
	
(c)	This Article applies only to retail sales of motor fuel at motor fuel outlets.
(d)	A violation of this section is an unfair method of competition under G.S. 75‑1.1.
"§ 75‑83.  Unlawful inducement; civil penalty.
It is unlawful to knowingly induce, or to knowingly attempt to induce, a violation of this Article, whether by otherwise lawful or unlawful means. In any action initiated by the Attorney General at the request of the Commissioner of Agriculture, anyone found to have violated this provision shall be subject to the civil penalty applicable to the sales made in violation of this Article; or, if no sales were made, to a civil penalty of one thousand dollars ($1,000). The clear proceeds of any civil penalties imposed in any actions initiated by the Attorney General under this section shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C‑457.2."§ 75‑84.  Separate offenses; injunctions.
Each act of establishing a price below cost in violation of this Article shall constitute a separate offense by the seller, and the civil penalty for each offense shall be not more than ten thousand dollars ($10,000). Upon a proper showing by the Attorney General or  the Commissioner of Agriculture, further violations may be temporarily or permanently enjoined. The clear proceeds of civil penalties provided for in this section shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C‑457.2.
"§ 75‑85.  Investigations by Commissioner of Agriculture.
Notwithstanding G.S. 75-9, the Commissioner of Agriculture may investigate any allegation of a violation of this Article made by a motor fuel merchant or group of motor fuel merchants. If the Commissioner of Agriculture receives a complaint in writing that a motor fuel merchant is selling motor fuel below cost, the Commissioner of Agriculture shall investigate and determine within three business days of the receipt of the written complaint whether the allegations in the complaint are true. If an investigation discloses a violation, the Commissioner of Agriculture may request the Attorney General to exercise the authority under this Article to seek an injunction and impose civil penalties. The Commissioner of Agriculture may, in order to prevent further sales, request the Attorney General to seize and seal any dispensing pump or dispensing devices from which motor fuel is offered or exposed for sale in violation of this Article. Motor fuel that has been seized and sealed under this section shall not be offered for sale until the Commissioner of Agriculture and the Attorney General, after consultation, are satisfied that the motor fuel merchant has satisfied the requirements of this Article. The clear proceeds of civil penalties provided for in this section shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C‑457.2.
"§ 75‑86.  Private actions.
Any person, corporation, or other business entity that is engaged in the sale of motor fuel for resale or consumption and that is directly or indirectly injured by a violation of this Article may bring an action in the district court or superior court of the county where the violation is alleged to have occurred to recover treble damages under G.S. 75-16, costs, and reasonable attorneys' fees. The court shall also grant such equitable relief as is proper, including a declaratory judgment and injunctive relief. Any action under this Article must be brought within one year of the alleged violation.
"§ 75‑87.  Private action presumptions.
(a)	In any private action brought under this Article, a violation shall be presumed to have occurred if: (i) the prevailing price  for any grade, brand or blend of a motor fuel sold by a refiner or terminal supplier to a wholesaler or retailer is greater than the price of the same grade, brand or blend of motor fuel sold by such refiner or terminal supplier directly through its own motor fuel outlet or through the outlet of an affiliate of said refiner or terminal supplier; or (ii) if the product price of any grade, brand or blend of a motor fuel sold by a wholesaler to a retailer is greater than the retail price of the same grade, brand or blend of motor fuel sold by such wholesaler through its own motor fuel outlet or the outlet of an affiliate of said wholesaler, provided the method of delivery and quantities of each delivery of motor fuel to the retailer and to the wholesaler's outlet or affiliate's outlet are the same or comparable.
(b)	A party may rebut the presumption created by this section by presenting evidence to establish that party's cost of the grade, brand or blend of motor fuel in question, or by qualifying for an exception under subdivision (1) or subdivision (2) of subsection (a) of  G.S. 75‑82.
"§ 75‑88.  Public disclosure; quantity of motor fuel available for sale. 
(a)	Any refiner or terminal supplier computing prevailing price under the provisions of G.S. 75-81(4) shall be required to publicly disclose this price.
(b)	No entity shall limit the quantity of motor fuel sold or offered for sale from a motor fuel pump to any one customer to a quantity less than the entire supply that is owned or possessed by the seller and that the seller is authorized to sell at the place of sale or offering for sale unless preempted by a State or federal state of emergency.
(c)	Motor fuel purchased under this section shall be dispensed into a container approved by the fire prevention code, the State Building Code as authorized under G.S. 143-139, or a containment vehicle approved by the Department of Transportation.
(d)	Each act violating this section shall constitute a separate offense, and is subject to a civil penalty. The civil penalty for each offense shall be not more than five thousand dollars ($5,000). Upon a proper showing by the Attorney General or the Commissioner of Agriculture, further violations may be temporarily or permanently enjoined. The clear proceeds of civil penalties provided for in this section shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C‑457.2.
"§ 75‑89.  Powers and remedies supplementary.
The powers and remedies provided by this Article shall be cumulative and supplementary to all powers and remedies otherwise provided by law."
SECTION 2.  This act becomes effective October 1, 2003, and applies to sales of motor fuels and offers of sale of motor fuel on or after that date.